TIME BROKERAGE AGREEMENT
------------------------
THIS TIME BROKERAGE AGREEMENT (the "Agreement") is made as of
this 30th day of December, 1998, by and between BENEDEK BROADCASTING
CORPORATION, a Delaware corporation ("Programmer"), and AK MEDIA GROUP, INC., a
Washington corporation ("Licensee").
WHEREAS, Licensee is the owner, operator and licensee of
television broadcast station KKTV(TV), Channel 11, Colorado Springs, Colorado
(the "Station");
WHEREAS, Licensee and Programmer have entered into as of the date
hereof that certain Exchange Agreement (the "Exchange Agreement") relating to
the sale by Licensee and the purchase by Programmer of all licenses, permits and
other authorizations for the Station (collectively, the "FCC Licenses") issued
by the Federal Communications Commission ("FCC") to Licensee and certain other
assets related to the Station as well as the sale by Programmer and the purchase
by Licensee of the FCC Licenses for KCOY, Santa Maria, California; and
WHEREAS, Licensee holds an affiliation agreement authorizing it
to broadcast programming of the CBS Television Network and various syndication
agreements authorizing it to broadcast entertainment and news programming (the
"Programming Agreements") and also provides locally produced news and public
affairs programming for its community of license (collectively, the "Licensee
Programming");
WHEREAS, Programmer wishes to provide programming for broadcast
on the Station, which may include, without limitation, original programs,
syndicated programs, barter programs, paid-for programs, locally produced
programs and advertising (the "Benedek Programming") and related management
services, and Licensee desires to accept and broadcast the programming supplied
by Programmer on the Station and such services, subject to the terms and
conditions hereof; and
WHEREAS, Programmer and Licensee, simultaneously with the
execution of this Agreement, are entering into a Time Brokerage Agreement with
respect to KCOY (the "KCOY TBA").
NOW, THEREFORE, for and in consideration of the mutual covenants
herein contained, the parties hereto have agreed and do agree as follows:
1. Programming and Transmission Services.
(a) Subject to the provisions of this Agreement, Licensee agrees
to make available to Programmer air time and transmission capabilities for the
broadcast of Benedek Programming on the Station for up to twenty-four (24) hours
per day, seven (7) days a week during periods when
Licensee is not broadcasting Licensee Programming. Licensee may, in its
discretion, assign any of the Programming Agreements, individually or in the
aggregate, to Programmer during the term of this Agreement. If any Programming
Agreement is assigned from Licensee to Programmer, programming provided under
that Programming Agreement shall be considered to be part of the Benedek
Programming.
(b) Programmer shall assure that no contract or commitment for
Programming arranged by Programmer shall give rise to any liability or
obligation of Licensee; provided that Programmer shall promptly inform Licensee
of each such contract and commitment and of the terms thereof and, if Licensee
shall elect to assume any such contract or commitment, Programmer shall, in the
event that the Exchange Agreement terminates without a Closing, upon the
termination of the term of this Agreement arrange for the immediate assignment
to Licensee of such contract or commitment and for the concurrent consent of
each other party thereto to such assignment.
2. Advertising Sales. Licensee shall timely fulfill all orders
for advertising on the Station applicable to any of the Licensee Programming and
Benedek Programming. In the event any such order calls for the placement of any
advertising on the Station after the termination of the term of this Agreement
without the consummation of the Exchange Agreement, Programmer shall if, and
only if, and to the extent Licensee elects to fulfill such order, cooperate with
Licensee to enable such advertising to be broadcast on the Station in accordance
with the terms of such order and all revenues and accounts receivable relating
to or arising from such orders shall be the sole and exclusive asset of
Licensee.
3. Payments. As consideration for the rights granted hereunder,
Programmer hereby agrees to pay to Licensee in a timely manner the amounts
referred to on Attachment I hereto (the "Fee"), in each case on the dates
specified in said Attachment I. Anything to the contrary contained in this
Agreement notwithstanding, in no event shall Programmer be entitled to delay
payment of, reduce, or set off any claim against, any amount payable by
Programmer under this Agreement, whether by reason of a breach or default by
Licensee or otherwise.
4. Term. The term of this Agreement shall begin on January 1,
1999 (the "Commencement Date"), and shall continue in force from that date for a
period of three (3) months, except that it shall be automatically extended if
the Closing (as defined in the Exchange Agreement) on the sale of the Station by
Licensee has not occurred and the Exchange Agreement has not been terminated,
until the earlier of the occurrence of (i) such Closing or (ii) the termination
of the Exchange Agreement.
5. Benedek Programming. Benedek Programming shall comply with the
Station's Policy Guidelines attached on Exhibit A hereto, as the same may be
reasonably amended by Licensee from time to time, and with the provisions of
this Agreement, and, provided such compliance obligations are satisfied, shall
be entertainment programming of Programmer's own selection, together with
commercial matters, news, public service announcements and other
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programming suitable for broadcast on the Station. All actions or activities of
Programmer under this Agreement, and Benedek Programming shall be in accordance
with: (a) the Communications Act of 1934, as amended; (b) the rules,
requirements and policies of the FCC, including, without limitation, the FCC's
rules on children's television programming, plugola/payola, lotteries and
contests, hoaxes, station identification, minimum operating schedule,
sponsorship identification, political programming and political advertising
rates; (c) all applicable federal, state and local laws, regulations and
policies (collectively, "Applicable Government Regulations"); and (d) generally
accepted quality standards of the television broadcast industry. In the event
that Licensee determines, based on the exercise of Licensee's good faith
reasonable business judgment, that Programmer has failed to comply in any
material respect with any of the standards provided for in this Agreement,
Licensee may suspend or cancel any Benedek Programming not in compliance. In the
event of any such suspension or cancellation, Programmer shall retain the right
to use the Benedek Programming and to authorize the use of such Benedek
Programming in any manner and in any media whatsoever.
6. Preemption. Licensee reserves the right in its discretion, and
without liability, to preempt, delay or delete any of the broadcasts of the
Benedek Programming and to broadcast in substitution such other programming
which, in Licensee's judgment, is of greater local or national importance. In
all such cases (except for those involving breaking news), Licensee shall use
reasonable efforts to provide Programmer with at least twenty-four (24) hours
notice of Licensee's intention to preempt, delay or delete such Programming.
Programmer agrees to cooperate in the airing of Licensee's substitute
programming, including the use of Programmer's personnel and equipment as
reasonably required.
7. Advertising and Programming Revenues. Programmer shall be
entitled to all advertising and promotion-related revenues, and all accounts
receivable, in respect thereof, arising from the sale of advertising time on the
Benedek Programming and the Licensee Programming, or utilized by Programmer and
arising under those Programming Contracts assumed by Licensee pursuant to this
Agreement, and in fact broadcast during the term hereof. Programmer shall be
responsible for payment of all agency commissions and the commissions payable to
any sales representative engaged by Programmer for the purpose of selling
advertising within the Benedek Programming. Licensee shall collect all
advertising and promotion-related revenues on behalf of Programmer and remit
such revenues to Programmer as specified in Attachment I hereto. Licensee and
Programmer each shall have the right, at its own expense, to seek copyright
royalty payments for its own programming. Subject to compliance with applicable
laws, Programmer may sell advertising on the Station in combination with the
sale of advertising on other television or radio stations.
8. Station Facilities. Subject to the terms and conditions set
forth in this Agreement, Licensee hereby agrees to make the facilities of the
Station that are owned or leased by Licensee ("Licensee Station Facilities")
available to Programmer twenty-four (24) hours a day, seven (7) days per week
for operation and broadcast. Licensee shall perform reasonable and customary
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maintenance of all Licensee Station Facilities and equipment and in furtherance
of its obligations to comply with applicable FCC rules, regulations and
policies, and Licensee's obligations set forth in this Paragraph. Any downtime
in the Licensee Station Facilities occasioned by any such maintenance shall not
be deemed to be a default or violation by Licensee.
9. Right of Access. Licensee shall provide Programmer with access
at all times to its owned and leased property used for the Station's operations
to conduct, at Programmer's expense, all activities for which such property is
currently used and permitted to be used. Licensee shall have access at all times
to its equipment and facilities used in conjunction with the production and
broadcast of the Licensee Programming so as to permit Licensee to operate and
control the Station and to broadcast the Benedek Programming and Licensee
Programming as provided herein. Programmer shall have the right, upon Licensee's
express prior written consent, such consent not to be unreasonably withheld, to
install and maintain at the Licensee Station Facilities, at Programmer's
expense, any microwave studio/transmitter relay equipment, telephone lines,
transmitter remote control, monitoring devices or any other equipment necessary
for the proper transmission of the Programming on the Station, and Licensee and
Programmer shall take, at Programmer's expense, all steps reasonably necessary
to prepare and file any applications with the FCC to effectuate such proper
transmission.
10. Force Majeure. Any failure or impairment of the Licensee
Station Facilities or any Station equipment or services or any delay or
interruption in the broadcast of the Benedek Programming, or failure at any time
by Licensee to furnish the Licensee Station Facilities, or any station equipment
or services, in whole or in part, for the broadcast of the Benedek Programming
or otherwise, due to acts of God, strikes, or threats thereof or force majeure,
or due to causes beyond the control of Licensee, shall not constitute a breach
of this Agreement, and Licensee shall not be liable to Programmer.
11. Equipment. The parties agree that Licensee shall retain title
to all of the KKTV Assets (as such term is defined in the Exchange Agreement)
until the Closing of the Exchange Agreement. Programmer shall hold title to any
new equipment or assets purchased or otherwise acquired by Programmer for the
Station during the term of this Agreement; provided that in the event the term
of this Agreement shall end and the Closing under the Exchange Agreement shall
not then have occurred, any equipment or asset obtained as a replacement for any
equipment or assets of Licensee without the express written consent of Licensee
automatically shall become and hereinafter be deemed owned by Licensee, and, in
the case of any such replacement items so consented to, Licensee shall have the
right to purchase the same at the net book value thereof, in each case free and
clear of all Liens (as defined in the Exchange Agreement). Programmer shall
execute and deliver to Licensee all instruments necessary to effectuate the
foregoing.
12. Licensee Control of Station. Notwithstanding anything to the
contrary in this Agreement, Licensee shall have full authority, control and
power over the operation of the Station during the term of this Agreement.
Licensee shall retain control over the policies, programming,
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finances, personnel and operations of the Station, including, without
limitation, the right to accept or reject any Programming or advertisements, and
the right to take any other actions necessary for compliance with Applicable
Government Regulations. Licensee shall be responsible to the Federal
Communications Commission for the Station's compliance with all Applicable
Government Regulations, including but not limited to FCC requirements with
respect to ascertainment of the problems, needs and interests of the community,
public service programming, children's programming, political broadcasting, main
studio staffing, maintenance of public inspection files, and maintenance of
appropriate Emergency Alert System equipment, in all cases without intending to
limit any compensation, reimbursement or other obligations of Programmer under
this Agreement. Programmer shall provide Licensee with all necessary information
with respect to the Benedek Programming that is responsive to the problems,
needs and interests of the community, and shall assist Licensee in all
reasonable respects requested by Licensee in the preparation of information to
enable Licensee to prepare records, reports and logs required by the FCC or
other local, state or federal governmental agencies. All correspondence
(including e-mail) from members of the public concerning the Station's
programming shall be provided to the Licensee.
13. Responsibility for Employees and Expenses. During this term
of this Agreement, Licensee hereby agrees to employ no fewer than two full-time
employees for the Station, one of whom shall be a management level employee,
both of whom shall report to and be accountable solely to Licensee, and who
shall be ultimately responsible for the day-to-day operations of the Station.
Programmer shall not employ or seek to employ any of Licensee's current
employees without Licensee's express written consent. Licensee shall be
responsible for paying the salaries, payroll taxes, health insurance and other
employment related costs for all personnel employed by Licensee with respect to
the Station. Effective the date of this Agreement, Programmer shall employ and
be responsible for all personnel, equipment and facilities used in the
production of the Benedek Programming (including, without limitation,
salespeople, traffic personnel and programming staff), except for those
personnel whom Licensee elects to employ and who shall be covered by the
immediately preceding sentence. All Programmer personnel shall be subject to the
supervision and the direction of Licensee's designated personnel in connection
with the performance of their duties at the Station. Licensee shall be
responsible for all expenses of Licensee related to the operation of the Station
and the Licensee Station Facilities and the Station's equipment. Licensee shall
also be responsible for income taxes relating to Licensee's earnings from this
arrangement. Programmer shall pay promptly when due all copyright fees
attributable to Benedek Programming broadcast on the Station during the term of
this Agreement.
14. Compliance with Law. Programmer agrees that, throughout the
term of this Agreement, Programmer shall comply with all laws and regulations
applicable to the conduct of Programmer's business and activities, including all
Applicable Government Regulations.
15. Payola/Plugola/EEO. Programmer agrees that it shall not
accept, and shall not permit any of its employees to accept, any consideration,
compensation, gift or gratuity of any kind whatsoever, regardless of its value
or form, including, but not limited to, a commission,
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discount, bonus, materials, supplies or other merchandise, services or labor,
whether or not pursuant to written contracts or agreements between Programmer
and merchants or advertisers, unless the payer is identified in the Benedek
Programming as having paid for or furnished such consideration, in accordance
with FCC requirements. Programmer agrees that, on an annual basis, or more
frequently at the request of Licensee, it will execute and provide Licensee with
affidavits regarding payola/plugola compliance in such form and substance as
Licensee shall reasonably require. Programmer shall comply with all equal
employment opportunity regulations and policies (including but not limited to
those of the FCC) to the extent such regulations and policies apply, or may in
the future be deemed to apply, to the employment practices of Programmer's
personnel assigned to duties in connection with the operation of the Station;
and Programmer shall timely provide Licensee with all information that may be
necessary or appropriate to comply with any reporting obligations of the FCC
pursuant to such regulations or policies.
16. Political Advertising. Licensee shall retain full
responsibility for overseeing compliance with the FCC's political programming
policies and regulations, including setting political advertising rates for the
Station and determining which legally qualified political candidates and races
shall have reasonable access to political advertising on the Station. At least
90 days prior to the beginning of any primary or general election period,
Licensee will set the rates to be charged legally qualified political candidates
to ensure that the rate conforms with applicable election law and policies.
Programmer agrees to provide Licensee with access to its documentation
concerning the pricing of advertising sold on the Station as is necessary to
permit Licensee to ascertain that the political rate is appropriate. Within 24
hours of any request to purchase time on the Station on behalf of a legally
qualified candidate, Programmer will report the request and its disposition to
Licensee and obtain Licensee's approval to such disposition, which approval
shall not be unreasonably delayed or conditioned. Licensee shall be responsible
for placing appropriate records in the Station's political file.
17. Indemnification. Programmer hereby agrees to indemnify and
hold harmless each entity comprising Licensee and all members and partners
thereof, and all members, partners, shareholders, directors, officers, agents,
employees, successors, and assigns of any of the foregoing against all
liability, damages, cost and expense (including without limitation reasonable
attorney's fees) suffered or incurred by any of them for, or arising out of, or
by reason of (a) libel, slander, illegal competition or trade practice,
infringement of trade marks, trade names, or program titles, violation of rights
of privacy, infringement of copyrights and proprietary rights and other
liabilities resulting from or relating to the broadcast of any Benedek
Programming, and (b) all other matters arising out of or related to Programmer's
activities involving the Station or use of any of the Licensee Station
Facilities and/or any equipment or assets of the Station. Licensee hereby agrees
to indemnify and hold harmless Programmer and its directors, officers, agents,
employees, successors, and assigns against all liability arising out of
liabilities of the type described in clause (a) of the first sentence of this
Paragraph that arise as a result of Licensee's alteration of any Benedek
Programming prior to broadcast by Licensee which alteration is not consented to
by Programmer.
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Programmer's and Licensee's obligations under this Paragraph 15 shall survive
any termination of this Agreement until the expiration of all applicable
statutes of limitation.
18. Events of Default; Cure Periods and Remedies. (a) The
following shall, after the expiration of the "applicable cure periods,"
constitute events of default under the Agreement ("Events of Default"):
(1) Programmer's failure to timely pay any consideration
provided for in this Agreement or any amount then due under this
Agreement or the Exchange Agreement;
(2) The default by any party hereto in the material observance
or performance of any material covenant or agreement contained herein;
provided, however, that any failure of Licensee to comply with
Applicable Government Regulations shall not be deemed to be a default of
a material covenant or agreement by Licensee if Programmer has failed to
provide information or cooperation to Licensee concerning Benedek
Programming that could have allowed Licensee to avoid such
noncompliance, or any other act or omission, or any instruction or
request to station personnel, by Programmer is a basis or cause of such
failure to comply with Applicable Government Regulations;
(3) Any party (1) shall make a general assignment for the
benefit of creditors, or (2) files or has filed against it a petition
for bankruptcy, for reorganization, or for the appointment of a
receiver, trustee or similar creditors' representative for the property
or assets of such party under any federal or state insolvency law,
which, if filed against such party, has not been dismissed or discharged
within sixty (60) days thereof;
(4) The default by any party hereto (after the expiration of
all applicable cure periods) in the material observance or performance
of any material covenant or agreement contained in the Exchange
Agreement which entitles the other party to terminate the Exchange
Agreement.
(b) Cure Periods. An Event of Default under 17(a) above shall not
be deemed to have occurred until thirty (30) business days after the
non-defaulting party has provided the defaulting party with written notice
specifying the event or events that if not cured would constitute an Event of
Default. The Event of Default which is subject to a cure period hereunder shall
not be deemed to have occurred if actions necessary and sufficient to cure are
taken during the relevant cure period.
(c) Right of Termination. In addition to other remedies available
at law or equity, but subject to the requirements and limitations set forth
herein, this Agreement may be terminated as set forth below by either Licensee
or Programmer by written notice to the other upon the occurrence of the
following:
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(1) this Agreement is declared invalid or illegal in whole or
substantial part by an order or decree of an administrative agency or
court of competent jurisdiction and such order or decree has become
final and no longer subject to further administrative or judicial
review;
(2) an Event of Default by the other party has occurred and the
party seeking to terminate is not then in material default or breach
hereof;
(3) the termination of the Exchange Agreement;
(4) the termination of the KCOY TBA;
(5) the mutual consent of all parties; or
(6) there has been a material change in FCC rules, policies or
precedent that would cause this Agreement to be in violation thereof and
such change is in effect and not the subject of a timely appeal or
further administrative review, provided that in such event the parties
shall first negotiate in good faith and attempt to agree on an amendment
to this Agreement that will provide the parties with a valid, binding
and enforceable agreement that conforms to the new FCC rules, policies
or precedent.
(d) Termination Requirements and Procedures. Unless otherwise
mutually agreed by Programmer and Licensee, any termination of this Agreement
shall, at the election of Licensee, not become effective until the effective
date specified by Licensee which shall not be more than ninety (90) days after
notice of termination is provided by Programmer or Licensee.
(e) Liabilities Upon Termination. Upon termination of this
Agreement for any reason, Programmer shall be responsible for all liabilities,
debts and obligations of Programmer accrued from the purchase of air time and/or
transmission services and all Benedek Programming, including, without
limitation, accounts payable, barter agreements and unaired advertisements, but
not for Licensee's federal, state, and local tax liabilities associated with
Programmer's payments to Licensee as provided for herein. With respect to
Programmer's obligations to broadcast programming, advertisements and other
material over the Station after termination hereunder, Licensee may propose
compensation to Licensee for meeting these obligations, but Licensee shall be
under no duty to propose such compensation or to perform such obligations and
Programmer shall accept any such proposal by Licensee which is reasonable and
equitable under the circumstances and cooperate with Licensee to effectuate such
performance. In no event shall Licensee be under any obligation to make
available to Programmer any broadcast time or broadcast transmission facilities
and all amounts accrued or payable to Licensee up to the date of termination
which have not been paid shall immediately become due and payable.
(f) Survival. Anything to the contrary contained in this
Agreement notwithstanding, all obligations under this Agreement accrued or
arising prior to or by reason of the termination of
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this Agreement shall survive such termination and the following provisions shall
also survive any such termination: Paragraphs 1(b), (c), (d) and (e) (with
respect to periods prior to the effective date of such termination), 2, 6, 7,
10, 12, 15, 16, 19.3 and 20.
19. Responsive Programming, Programmer and Licensee mutually
acknowledge their interest in ensuring that the Station serve the needs and
interests of the residents of their communities of license, and the surrounding
service areas and agree to cooperate in doing so. Licensee may request, and
Programmer shall provide, information concerning such of Benedek Programming
that is responsive to community issues so as to assist Licensee in the
satisfaction of its public service programming obligations.
20. Time Brokerage Challenge. If this Agreement is challenged in
whole or in part at the FCC or in another administrative or judicial forum,
whether or not in connection with the Station's license renewal application,
counsel for Licensee and counsel for Programmer shall, at their joint expense,
jointly defend the Agreement and the parties' performance hereunder throughout
all such proceedings. If portions of this Agreement do not receive the approval
of the FCC's staff, or the Agreement receives such approval with conditions that
are adverse to Licensee or Programmer, then the parties shall endeavor in good
faith to reform the Agreement as necessary to satisfy the FCC staff's concerns,
while preserving the respective benefits to and without increasing the
respective obligations of the parties, or seek reversal of the staff decision
and approval from the full Commission on appeal.
21. Programmer's Representations, Warranties and Covenants.
Programmer makes the following additional representations, warranties and
covenants:
(a) Compliance with Applicable Law. Programmer's performance of
its obligations under this Agreement and its furnishing of Benedek
Programming shall be in compliance with, and shall not violate or cause
Licensee to violate any applicable laws or any applicable rules,
regulations, or orders of the FCC or any other governmental agency.
(b) Handling of Complaints. Programmer shall promptly advise
Licensee of any public or FCC complaint or inquiry that Programmer
receives concerning the Benedek Programming and shall cooperate with
Licensee and take all actions as may be reasonably requested by Licensee
in responding to any such complaint or inquiry.
(c) Copyright and Licensing. Programmer shall not broadcast on
the Station any material in violation of the Copyright Act.
(d) Insurance. Programmer shall maintain throughout the term of
this Agreement general liability insurance and errors and omissions
insurance covering broadcasts made on the Station, and shall name
Licensee as an additional insured on such insurance policies.
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(e) Information for FCC Reports. Upon request by Licensee,
Programmer shall provide in a timely manner any such information in its
possession that shall enable Licensee to prepare, file or maintain the
records and reports required by the FCC.
22. Miscellaneous.
(a) Certain Limitations. Anything to the contrary contained in
the Agreement notwithstanding:
(1) in the event the Closing under the Exchange Agreement shall
occur, Licensee shall have no liability or obligation whatsoever under
this Agreement, whether for matters arising prior to such Closing or
otherwise.
(2) Programmer's sole remedy for any breach or default by
Licensee under this Agreement shall be such rights as Programmer may
have under the Exchange Agreement upon the termination thereof.
(3) Nothing herein, express or implied, is intended or shall be
construed to confer upon or give to any person or entity, other than the
parties hereto, any rights, remedies or other benefits under or by
reason of this Agreement.
(b) Amendment; Waiver. No modification, amendment or waiver of
any provision of this Agreement shall in any event be effected unless the same
shall be in writing and signed by the party adversely affected by the waiver or
modification, and then such waiver and consent shall be effective only in the
specific instance and for the purpose for which given.
(c) No Waiver; Remedies Cumulative. No failure or delay on the
part of Licensee or Programmer in exercising any right or power hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right or power, or any abandonment or discontinuance of steps to enforce
such a right or power, preclude any other or further exercise thereof or the
exercise of any other right or power. Except as otherwise provided in this
Agreement or in the Exchange Agreement, the rights and remedies of Licensee and
Programmer herein provided are cumulative and are not exclusive of any right or
remedy which Licensee or Programmer may otherwise have.
(d) Construction. This Agreement shall be construed in accordance
with the laws of the State of California, excluding the choice of law rules
thereof.
(e) Headings. The headings contained in this Agreement are
included for convenience only and no such heading shall in any way alter the
meaning of any provision.
(f) Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties and their respective successors
and permitted assigns. This Agreement shall
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be assignable only to the same extent as and solely in connection with any
assignment of the Exchange Agreement permitted pursuant to the terms thereof.
(g) Notices. Any notice required hereunder shall be in writing
and any payment, notice or other communication shall be deemed given when
delivered personally, or mailed by certified mail or Federal Express, postage
prepaid, with return receipt requested:
If to Licensee:
AK Media Group, Inc.
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xx. Xxxxx X. Xxxxxx
With a copy to:
Xxxxx, Xxxxxxx, Xxxxxxx, Xxxxxx & Xxxxx, LLP
0000 Xxx Xxxxxxxxx Xxxxxx, X.X., Xxxxx 0000
Xxxxxxxxxx, X.X. 00000
Attn: Xxxxx X. Xxxxxxx, Esq.
If to Programmer:
Benedek Broadcasting Corporation
000 Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attn: President
With a copy to:
Shack & Xxxxxx, P.C.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. Xxxxxxx, Esq.
(h) Entire Agreement. This Agreement, together with the Exchange
Agreement and the Schedules, Attachments and Exhibits hereto and thereto, embody
the entire agreement between the parties and there are no other agreements,
representations, warranties, or understandings, oral or written, between them
with respect to the subject matter hereof.
(i) Severability. In the event that any of the provisions
contained in this Agreement is held to be invalid, illegal or unenforceable,
this Agreement shall be construed as if
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such invalid, illegal or unenforceable provisions had not been contained herein,
subject to the termination rights contained in Paragraph 16 hereof.
(j) Signatures. This Agreement may be signed in one or more
counterparts, each of which shall be deemed a duplicate original, binding on the
parties hereto notwithstanding that the parties are not signatory to the
original or the same counterpart. This Agreement shall be binding and effective
as of the date on which the executed counterparts are exchanged by the parties.
The parties agree to be bound upon the exchange of signature pages transmitted
by facsimile; provided, however, upon execution of this Agreement, Programmer
agrees to send to Licensee and Licensee agrees to send to Programmer, the
original signature pages via overnight delivery.
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IN WITNESS WHEREOF, the parties have executed this Time Brokerage
Agreement as of the date first above written.
BENEDEK BROADCASTING CORPORATION
By: /s/ K. Xxxxx Xxxxx
------------------------------
Name: K. Xxxxx Xxxxx
Title: President
AK MEDIA GROUP, INC.
By: /s/ Xxxxx Xxxxxx
-------------------------------
Name: Xxxxx Xxxxxx
Title: Secretary/Treasurer
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TIME BROKERAGE AGREEMENT
ATTACHMENT I
1. Programmer shall pay to Licensee during each month of the term of
this Agreement an amount equal to one-twelfth of the Station's actual 1998
broadcast cash flow (as such term is commonly understood in the broadcasting
industry) (the "Fixed Fee Amount"), plus the following:
a. The amount of all salaries, commissions and other
compensation, payroll, taxes, health insurance and other fringe benefits
and other employment-related costs and expenses for or with respect to
all employees of the Station in respect of and/or allocable to the term
of this Agreement (the "Employment Related Amount"); and
b. An amount equal to all costs and expenses incurred by
Licensee in connection with operating the Station (including, without
limitation, lease payments, utilities, taxes, programming fees, sales
representatives' commissions, Programming Agreement charges and all
other fees and expenses) in respect of and/or allocable to the term of
this Agreement.
2. The fees, costs and expenses referred to above shall be termed,
collectively, the "Time Brokerage Fee." The Fixed Fee Amount for each calendar
month during the term of this Agreement shall be paid within 10 days after the
end of each such month. The Employment Related Amount for each calendar month
for each calendar month during the term of this Agreement shall be paid in
arrears within 10 days after the end of each such month. Programmer shall pay
all other amounts payable by Programmer as contemplated by this Attachment I
within 10 days of invoicing by Licensee therefor.
3. Licensee shall collect all accounts receivable relating to the
Station and the KKTV Assets (as such term is defined in the Exchange Agreement)
and shall be responsible for the payment of all costs and expenses relating to
the ownership and operation of the Station and the KKTV Assets, in each case,
for the period through December 31, 1998. All such accounts receivable arising
out of operation of the Station and the KKTV Assets prior to 12:01 a.m. Pacific
time on the Commencement Date (the "Licensee's Term") shall belong to the
Licensee. All such accounts receivables arising out of operation of the Station
and the KKTV Assets on or after 12:01 a.m. Pacific time on the Commencement Date
through the expiration of this Agreement (the "TBA Term") shall belong to the
Programmer. Licensee acknowledges that Programmer has granted a security
interest in and lien upon all of its accounts receivables, including the
accounts receivables arising out of the operation of KKTV on or after the
Commencement Date, to Bankers Trust Company, as agent for lenders to Programmer
under an Amended and Restated Credit Agreement dated as of December 17, 1997.
All costs and expenses relating to the operation of the Station and the KKTV
Assets during the Licensee's Term shall be borne by Licensee. All costs and
expenses relating to the operation of the Station and the KKTV Assets during the
TBA Term shall be borne by Programmer. Accounts receivable, costs and expenses
arising from contracts or services for
periods covering both the Licensee's Term and the TBA Term shall be prorated
according to each term. Such prorations shall include, without limitation, all
ad valorem, real estate and other property taxes, business and license fees,
lease payments, rents, wages and salaries of employees (including accruals for
bonuses, commissions, and vacation pay), workers compensation premiums, utility
expenses, water and sewer use charges, time sales agreements, pre-paid fees and
expenses to the extent Programmer has received a benefit thereof, and all other
income and expenses attributable to the operation of the Station. Programmer
acknowledges, however, that the consideration for the Station includes payment
for the contracts and commitments of Licensee relating to motion pictures and
other programming and for barter receivables arising in connection with
trade-out agreements and that no further payment to Licensee or proration shall
be due in respect thereof, except that Licensee shall be responsible for all
payments relating to such contracts due pursuant to the contracts therefor prior
to the Commencement Date. Within 15 days after the end of each month after the
Closing Date (as such term is defined in the Exchange Agreement), Licensee will
provide Programmer with a written report on account receivables collections made
and costs and expenses paid for such month. On the Closing Date, Licensee and
Programmer shall settle any amounts owed to the other.
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TIME BROKERAGE AGREEMENT
EXHIBIT A
BROADCAST STATION PROGRAMMING POLICY STATEMENT
The following sets forth the policies generally applicable to the presentation
of programming and advertising over Television Station KKTV(TV), Colorado
Springs, Colorado. All programming and advertising broadcast by the Station must
conform to these policies and to the provisions of the Communications Act of
1934, as amended (the "Act"), and the Rules and Regulations of the Federal
Communications Commission ("FCC").
STATION IDENTIFICATION
The Station must broadcast a Station identification announcement once an hour as
close to the hour as feasible in a natural break in the programming. The
announcement must include (1) the Station's call letters; followed immediately
by (2) the Station's city of license.
BROADCAST OF TELEPHONE CONVERSATIONS
Before recording a telephone conversation for broadcast or broadcasting such a
conversation simultaneously with its occurrence, any party to the call must be
informed that the call will be broadcast or will be recorded for later
broadcast, and the party's consent to such broadcast must be obtained. This
requirement does not apply to calls initiated by the other party which are made
in a context in which it is customary for the Station to broadcast telephone
calls.
SPONSORSHIP IDENTIFICATION
When money, service, or other valuable consideration is either directly or
indirectly paid or promised as part of an arrangement to transmit any
programming, the Station at the time of broadcast shall announce (1) that the
matter is sponsored, either whole or in part; and (2) by whom or on whose behalf
the matter is sponsored. Products or services furnished to the Station in
consideration for an identification of any person, product, service, trademark
or brand name shall be identified in this manner.
In the case of any political or controversial issue broadcast for which any
material or service is furnished as an inducement for its transmission, an
announcement shall be made at the beginning and conclusion of the broadcast
stating (1) the material or service that has been furnished; and (2) the
person(s) or association(s) on whose behalf the programming is transmitted.
However, if the broadcast is 5 minutes duration or less, the required
announcement need only be made either at its beginning or end.
Prior to any sponsored broadcast involving political matters or controversial
issues, the Station shall obtain a list of the chief executive officers, members
of the executive committee or board of directors of the sponsoring organization
and shall place this list in the Station's public inspection file.
The station, its personnel, or its programmers shall not accept or agree to
accept from any person any money, service, or other valuable consideration for
the broadcast of any matter unless such fact is disclosed to the Station so that
all required Station identification announcements can be made. All persons
responsible for Station programming must, from time to time, execute such
documents as may be required by Station management to confirm their
understanding of and compliance with the FCC's sponsorship identification
requirements.
REBROADCASTS
The Station shall not rebroadcast the signal of any other broadcast Station
without first obtaining such Station's prior written consent to such
rebroadcast.
FAIRNESS
Station shall seek to afford coverage to contrasting viewpoints concerning
controversial issues of public importance.
PERSONAL ATTACKS
The Station shall not air attacks upon the honesty, character, integrity or like
personal qualities of any identified person or group. If such an attack should
nonetheless occur during the presentation of view on a controversial issue of
public importance, those responsible for programming shall submit a tape or
transcript of the broadcast to Station management and to the person attacked
within 48 hours, and shall offer the person attacked a reasonable opportunity to
respond.
POLITICAL EDITORIALS
Unless specifically authorized by Station management, the Station shall not air
any editorial which either endorses or opposes a legally qualified candidate for
public office.
POLITICAL BROADCASTING
All "uses" of the Station by legally qualified candidates for elective office
shall be in accordance with the Act and the FCC's Rules and policies, including
without limitation, equal opportunities requirements, reasonable access
requirements, lowest unit charge requirements and similar rules and regulations.
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OBSCENITY AND INDECENCY
The Station shall not broadcast any obscene material. Material is deemed to be
obscene if the average person, applying contemporary community standards in the
local community, would find that the material, taken as a whole, appeals to the
prurient interest; depicts or describes in a patently offensive way sexual
conduct specifically defined by applicable state law; and taken as a whole,
lacks serious literary artistic, political or scientific value.
The Station shall not broadcast any indecent material outside of the periods of
time prescribed by the Commission. Material is deemed to be indecent if it
includes language or material that, in context, depicts or describes, in terms
patently offensive as measured by contemporary community standards for the
broadcast medium, sexual or excretory activities or organs.
BILLING
No entity which sells advertising for airing on the Station shall knowingly
issue any xxxx, invoice or other document which contains false information
concerning the amount charged or the broadcast of advertising which is the
subject of the xxxx or invoice. No entity which sells advertising for airing on
the Station shall misrepresent the nature or content of aired advertising, nor
the quantity, time of day, or day on which such advertising was broadcast.
CONTESTS
Any contests conducted on the Station shall be conducted substantially as
announced or advertised. Advertisements or announcements concerning such
contests shall fully and accurately disclose the contest's material terms. No
contest description shall be false, misleading or deceptive with respect to any
material term.
HOAXES
The Station shall not knowingly broadcast false information concerning a crime
or catastrophe.
EMERGENCY INFORMATION
Any emergency information which is broadcast by the Station shall be transmitted
both aurally and visually or only visually.
LOTTERY
The Station shall not advertise or broadcast any information concerning any
lottery (except any state lottery). The Station may advertise and provide
information about lotteries conducted by non-profit groups, governmental
entities and in certain situations, by commercial organizations, if and only if
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there is no state or local restriction or ban on such advertising or information
and the lottery is legal under state or local law. Any and all lottery
advertising must first be approved by Station management.
ADVERTISING
The Station shall comply with all federal, state and local laws concerning
advertising, including without limitation, all laws concerning misleading
advertising, and the advertising of alcoholic beverages.
PROGRAMMING PROHIBITIONS
Knowing broadcast of the following types of programs and announcements is
prohibited:
False Claims. False or unwarranted claims for any product or service.
Unfair Imitation. Infringement of another advertiser's rights through
plagiarism or unfair imitation of either program idea or copy, or any
other unfair competition.
Commercial Disparagement. Any unfair disparagement of competitors or
competitive goods.
Profanity. Any programs or announcements that are slanderous, obscene,
profane, vulgar, repulsive or offensive, as evaluated by Station
management.
Violence. Any programs which are excessively violent.
Unauthenticated Testimonials. Any testimonials which cannot be
authenticated.
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